The justifiable imposition of criminal liability requires more than possession of mens rea and performance of an actus reus. A defendant’s mens rea and actus reus must also connect in a particular way. While this is a well-recognized principle in Anglo-American criminal law, the nature of the required connection—“correspondence”—is poorly understood.

This Article identifies three conflicting existent theories of correspondence from the criminal legal literature and from judicial reasoning: contemporaneity theory, actuation theory, and normative theory. According to contemporaneity theory, correspondence requires that mens rea overlap in time with the actus reus. According to actuation theory, correspondence requires that mens rea cause the actus reus in a particular way. According to normative theory, correspondence requires that certain normative facts be true—for example, that an actus reus be a moral wrongdoing in virtue of the defendant’s mens rea.

In this Article, I argue each existent theory shares a common flaw: Each theory supposes a necessary condition for correspondence that is not genuinely necessary. In the absence of a better theory, there is no reliable way of sorting out defendants who should be acquitted for lacking correspondence from those defendants who need not, and courts cannot provide honest explanations for why a defendant falls in one or the other group.

I go on to harness what is useful about existent theories to propose a path toward a better theory of correspondence. Normative theory points the way to a “job description” for correspondence—a posit regarding what work correspondence performs in securing the truth of claims about the justifiable imposition of criminal liability. The posit is that correspondence operates to ground a defendant’s moral culpability for performance of an actus reus in virtue of mens rea. With this job description in hand, one can appreciate that unlike contemporaneity, actuation proves sufficient for correspondence. A new theory of correspondence should build off actuation theory by locating similarities between actuation and other relations that can do the work of grounding moral culpability.

I conclude by noting how a theory of correspondence can provide payoffs beyond criminal law—within any doctrinal arena that has come to be “criminal-law-like” through a dichotomization of thought and conduct.

Although criminal solicitation is recognized as one of the “historic and traditional categories” of unprotected speech, courts’ understanding of this doctrine remains limited and narrow. Nearly three years ago, the Supreme Court finally made progress in clarifying the boundaries between criminal solicitation and protected advocacy. In United States v. Hansen, the Court held that solicitation is the intentional encouragement of a specific unlawful act and, because speech of this kind “has no social value,” it is therefore unprotected. The Supreme Court, however, left a key question unanswered: Why does restricting advocacy that doesn’t meet the Brandenburg v. Ohio imminence-of-harm requirement satisfy First Amendment standards? Or, to put the same question differently, what is the constitutional difference between criminal solicitation and incitement?

This Article presents the first comprehensive study of the relationship between freedom of speech and criminal solicitation. It tries to make sense of the new legal framework governing speech that encourages unlawful conduct and grapples with its conceptual and practical implications. It argues that, though the Court in Hansen did not purport to overrule Brandenburg, the decision introduced doctrinal uncertainties that risk weakening Brandenburg’s legacy. To avoid unnecessarily suppressing free speech, courts need a more worked-out theory of criminal solicitation—one that draws more precise boundaries with other doctrines regulating speech that encourages unlawful conduct. This Article aims to provide that theory.

After excavating the potentially far-reaching and pernicious material consequences of applying the new solicitation test to regulate speech, this Article advances a normative claim: Only advocacy of unlawful conduct that has no recognized constitutional value should be governed by the Hansen framework. On this view, solicitation is best understood as the direct, intentional encouragement of a specific unlawful act that is likely to cause harm. A review of the Supreme Court cases from the twentieth century shows that other forms of advocacy—those with more than minimal constitutional value—were governed by the Brandenburg incitement test. That should remain the standard.

Water pollution incidents pose both acute and long-term risks to human health, yet the Clean Water Act (CWA) ineffectively holds water polluters accountable. By defining criminal violations in terms of technical breaches of the statute, the CWA’s criminal provisions are vulnerable to narrow judicial interpretations, leaving many environmental crimes unpunished. Furthermore, the Environmental Protection Agency (EPA) rarely pursues criminal charges under the CWA, relying instead on civil fines, which fail to impose meaningful consequences. This underinclusiveness and under-utilization allows many polluters to evade serious penalties. Even when pollution incidents are covered by the CWA and the EPA pursues prosecution, the focus on statutory violations rather than the harm to human health weakens deterrence. Violators face neither the stigma nor the severity associated with crimes against persons, diminishing the statute’s potential to deter harmful behavior.

This Comment argues that prosecutors should charge water polluters with assault or assault with a deadly weapon to address the shortcomings of the CWA. Water polluters often act knowingly, recklessly, or negligently in polluting waters, and their actions frequently lead to bodily injury. Prosecutors can navigate the challenge that proving causation poses in complex environmental cases by drawing on the bifurcated causation approach used in toxic tort cases. Charging water polluters with assault not only captures polluters who may evade liability under the CWA, but also directly acknowledges the human harm caused by water pollution. Such prosecutions should no longer be uncharted waters.